DEFENSE COUNSEL EXPOSES FATAL IRREGULARITIES IN TREASON TRIAL By Phil ya Nangoloh* In her comprehensive reply to the Prosecution’s “conveniently one-sided” narration of the history of the marathon Caprivi High Treason Trial (CHTT), defense counsel representing 12 previously unrepresented Caprivi high treason trialists last Monday highlighted some of the major and fatal procedural irregularities marring Namibia’s treason trial right from the start. Saying inter alia that the evidence (which she also dubbed “non-evidence”) brought against her clients and all other accused persons are “fruits from a poisonous tree”, Ms. Ilse Agenbach told the presiding judge, Elton Hoff, that the case against her clients is a non-starter owing to the unlawful manner in which such evidence was obtained (i.e. through systematic and widespread torture and other ill-treatment) and to the fashion in which her clients were dragged before “this clean hall of justice” (in blatant violation of their Miranda rights). She also submitted that, contrary to the provisions of inter alia Article 3 of the UN Convention against Torture (“UNCAT”) outlawing refoulement, her clients have been hauled before the high treason court through “trickery” or false pretenses under the shroud of voluntary repatriation from Botswana. However, Clause 9(1) of the Tripartite Repatriation Agreement between Botswana, Namibia and UNHCR immunizes the returnees from being “subjected to any form of legal process, persecution, discrimination or punishment on account of their religion, ethnic original or political affiliation, or having left the country as refugees”. She told judge Hoff that such “non-evidence” must never be allowed to stand. State prosecutor Herman January stood up and stringently objected to Agenbach’s reference to “trickery”. Several months ago, Greyson Nyoni, another defense lawyer in the controversial trial, made a similar submission when he argued that the case against his clients was lost “right there in the bushes of Caprivi”, where and when all his clients were also subjected to systematic torture by members of the Namibian security forces. Ms. Agenbach also submitted that the whole trial is flawed and constitutes an “impermissible irregularity” right from the word go, because of the failure of the judicial officers and prosecutors to order a prompt, impartial and effective investigation into the torture and ill-treatment allegations made against the Namibian police torturers. Saying that the crime of torture and other ill-treatment is much heavier (having been prohibited by jus cogens (i.e. compelling law of nations)) than the crime of high treason, Ms. Agenbach also submitted that the court has made a fatal error to grant the Prosecution’s prayer back in 2000 that the trial of the accused persons on the crime of high treason should precede the investigation, prosecution and punishment of the Police on the crime of torture and ill-treatment. She also pointed out that owing to the exceptional circumstances which had prevailed in the Caprivi Strip following the armed attack on August 2 1999, the Prosecution knew or should have known that torture and other ill-treatment have been committed on a systematic and wide scale, not only against the accused persons, but also against numerous other persons merely either because of their real or perceived membership in the Mafwe ethnic group or because of their membership in the now-banned United Democratic Party (UDP). “Yet the Prosecution did nothing” to bring the torturers to book. Ms. Agenbach also vehemently argued that the gross violations of human rights in the Caprivi Strip constitute war crimes or crimes against humanity amounting to “ethnic cleansing at best and genocide at worst”. Agenbach further submitted that, in the unlikely event, the Prosecution disputed the fact that the crime of torture and other ill-treatment had occurred on a systematic or widespread scale in the Caprivi Strip, the onus is on the Prosecution to prove that “the contrary is true”. Furthermore, Ms. Agenbach submitted that torture and ill-treatment are strictly and absolutely proscribed in terms of inter alia Article 2 of UNCAT and that because this Convention and other relevant international norms are hierarchically superior over and above Namibia’s domestic criminal legislation (which is in conflict with international norms), the Caprivi High Treason Trial should have been governed by the said Convention instead of, for example, Namibia’s Criminal Procedure Act 1977 (Act 51 of 1977). In this regard, she also invoked Article 27 of the 1969 Vienna Convention on the Law of Treaties, which says that a state cannot invoke the provisions of its domestic legislation as justification for its failure to perform a treaty! *Phil ya Nangoloh is executive director of NamRights (formerly known as National Society for Human Rights (NSHR)). Ya Nangoloh has been closely monitoring the Caprivi High Treason Trial and has written several newspaper and internet articles about this trial. He can be reached via e-mail: [email protected]
Posted on: Wed, 16 Oct 2013 10:40:54 +0000